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Conflict and Consensus: The Anti-Racism and Discrimination Law in Bolivia; Part I: Content and Justification of the Legislation

Written by Emma Banks, The Andean Information Network October 15, 2010

On October 8, Bolivian President Evo Morales signed the “Law against Racism and all Forms of Discrimination” (O45) into effect. Despite protests from journalists across the country, the Bolivian Legislative Assembly passed the law without modifying contested articles 16 and 23, which outline potential penalties for members of the media who publish racist or discriminatory ideas.

While the majority of national and international criticism has focused on how this law might potentially limit freedom of speech in Bolivia, the measure’s twenty-four articles go far beyond simply regulating the media to combat racism and discrimination in all public and private institutions. International accords on racism and discrimination provide the foundation to address the long history of these problems in Bolivia.

The Bolivian representative of the United Nations Office of the High Commissioner on Human Rights (UNHCHR), Denis Racicot, declared support for this new law, but has cautioned the Bolivian government to implement these changes carefully and gradually, and concentrate on resolving the current dispute with the Bolivian press.[i] It remains to be seen how the Morales administration will address the current conflict. Law 045 has the potential to bring much needed change to Bolivia, but its stipulations and penalties must be clearly defined and sensibly executed to quell the current conflict. Furthermore, press protests about the possible prosecution under the law fail to recognize, that, when accused, clauses in Article 23 allow the offender to formally apologize for racist or discriminatory insults to avoid penalties. The media should work with the MAS administration to ensure that penalties for the press are appropriate to the violation (e.g. community service over prison sentences) and do not limit free speech. Furthermore, Bolivian law has placed limits on freedom of the press since the passage of the Press Law in 1925. This new legislation includes racism and discrimination as additional limitations.

Justification for the law

The draft bill for the new legislation cited the need for change and put the law within the context of Bolivian history and international accords. For example, the preamble:[ii]

Recounts the history of racism and discrimination in Bolivia, particularly tied to colonial and neo-colonial control of the nation.

Outlines how this norm reflects the goals of the new constitution and mandates equal social, economic, and cultural opportunity for all citizens.

Cites the law in accordance with other international measures, particularly the Durban Action Plan.[iv]

Key components

The law strives to make Bolivia a more equitable society both by attempting to prevent racism and discrimination, and by criminalizing racist and discriminatory behavior. Although the majority of media attention highlights the law’s focus on racism, it also protects against discrimination based on gender, sexual orientation, age and physical disability, among others.

Chapter IV sets the legal parameters to protect victims of racism and discrimination.

These measures include disciplinary action against public and private institutions for racist or discriminatory actions, as well as the implementation of anti-racism and anti-discrimination norms to avoid these problems.[v]

Chapter V modifies several articles of the existing penal code in relation to “crimes against human dignity.”

Article 23, contested by the press, defines racism and discrimination as criminal acts, and outlines legal consequences for racist or discriminatory organizations, media outlets, public officials and other offenders who publicize these ideas.

The most severe penalties outlined in Article 23 are reserved for public servants and administrators. For example, in cases of racist or discriminatory infringement of human rights the perpetrator must serve a prison sentence, which will be one-third to one-half more severe if the accused is a public official.[vii]

Conflicts with the press

Conflict between the Morales administration and many sectors of the national press center on Articles 16 and 23, which outline the penalties facing media workers and owners for publishing or encouraging racist or discriminatory ideas. Despite press protests across the country, the government did not modify or publically debate these articles before finalizing the law, creating susceptibility on the part of the press and setting the scene for heightened conflict. However, the media rejected the government’s invitation to develop the implementation guidelines and regulations for the law, which would have provided the alternative space for a voice in the process that they demand.

Points of friction:

Article 16 (MASS MEDIA COMMUNICAITON): Communications media that authorizes and publicizes racist or discriminatory ideas will be subject to economic sanctions and suspension of operating licenses, according to regulations.[viii]

Members of the media are concerned that this law gives the government power to go after media outlets that support the opposition or publish negative stories that criticize the current administration.

The Bolivian government and judiciary must carefully and objectively interpret the law to avoid using it as a tool to silence dissenting opinion.

Many workers have expressed support for the spirit of the law. However, they are concerned about the possibility of extreme legal interpretations and subsequent penalties. For example, if a contributor expresses racist or discriminatory ideas during a live broadcast, the contributing channel could face sanctions although they were unable to control the content of the interview.

In a letter supporting the press protest, Bolivian Catholic Bishops’ Conference stated, ” The principal concerns lies in the subjective parameters of interpretation, and sanctions permitted by the law, which could easily lead to cases of censure, vengefulness, and forms of authoritarianism…We recognize the legitimacy of the media demands as well as their actions in defense of freedom of expression, one of the pillars of every democratic society.”[ix]

The press is by no means a unified force. Some outlets are opposed to the MAS administration in general, while others simply do not agree with certain stipulations of this law. Morales has long been on tense terms with the press, and frequently berates journalists for inaccurate reporting. This adversarial relationship has provoked resentment among many journalists, and as a result, suspicion about the intent of this legislation.

According to UNHCHR comments on these laws, the penalties outlined in Article 16 are similar to laws in Colombia and Venezuela, which uphold measures to regulate media. Spain, Mexico and Uruguay also apply economic sanctions under similar legal circumstances. The new Bolivian legislation also includes jail terms for certain racist or discriminatory actions (Article 23), similar to norms in Germany (sentences up to five years for inciting racism or discrimination), Canada (up to two years)[x] and Peru (2-4 years).[xi] However, it is unclear that these jail terms would apply to press workers, (see below).

Many journalists are also concerned about a modification to Article 23 of the penal code which punishes “Any person who, by whatever means, insults or [engages in] verbal attacks, with racist or discriminatory motives.”[xii]This penalty is longer if the crime is committed in print, manuscript or other media.

While almost all the other sections of Article 23 sanction jail time for offenders, the contested section requires offenders to complete community service as punishment.

Furthermore, for the first offense, the guilty party can avoid charges by publically apologizing or retracting their statement.These legal stipulations are similar to existing Bolivian Penal Code sanctions for slander and defamation charges.

For example, the co-editor of the Opinión newspaper recently apologized for comments made by a columnist, who claimed that Evo Morales was a “cross between a llama and Lucifer.” The co-director promised that no such comment would be made again in Opinión.[xiii] As a result, he eliminated grounds for legal recourse against the paper.[xiv]

This article modifies the penal code, but not the existing Press Law. The Morales administration has promised not to modify the latter.

The Press Law, which dates back to 1925, allows freedom of speech, but also contains a clause (Article 11) that prevents “obscene or immoral” reporting or publishing anything that violates other Bolivian laws.[xv] The new legislation makes racism and discrimination illegal.

Media members publicizing racist or discriminatory ideas could face jail time if courts interpret their conduct as a criminal act (Article 23). Harsher punishment matches more extreme infractions, including incitement of racist or discriminatory ideas or violation of human rights based on racist or discriminatory motive. It is important to more clearly define these offenses and distinguish between reporting of racist incidents versus racist or discriminatory reporting.

Canada, which has some of the toughest hate crime laws in the world, has faced conflicts between interpretation of hate crime legislation and freedom of press. In recent years, several journalists have been taken to provincial Human Rights Commissions for anti-Islamic sentiments that were deemed “offensive.” Although these cases have often been dismissed since there was no proof of “incitement of hate”, some media continue to criticize the Canadian Human Rights Commission and its provincial branches for corruption and infringement of freedom of speech. These cases demonstrate that application of hate crime laws must be carefully executed to avoid undue legal punishments and to avoid bureaucracy and corruption within the legal system.[xvi]

Conclusions

The spokesperson the Organization of American States (OAS) in Bolivia, Enrique Reina, pointed out: “For now, I believe there is liberty of expression, since media outlets have expressed their concerns.”[xvii] He added that the OAS supports the goals of this law, and that protestors must first work through all levels of the Bolivian justice system before petitioning OAS to revise the law. Reina emphasized the need for mutual dialogue and compromise between the press and the government.

Bolivian Human Rights Ombudsman Rolando Villena stated, “This law is highly politicized. We have to de-politicize the law so that it can be representative, and so that it can comply with the goals that Bolivians hope for, building a state without racism or discrimination. …We are missing the main point: Once we accept that we are a racist country, we have to change this situation.”[xviii]

Press workers are currently collecting signatures to hold a referendum and pressure the Legislative Assembly to modify Articles 16 and 23. Although Vice President García Linera sustains that this measure is un-constitutional, Morales says he will support it if the press collects enough signatures.

Continuing dispute over this law is likely, but can be overcome if all sides cooperate to work toward fair and reasonable implementation guidelines. The conflicts between the Bolivian media and government demonstrate the need for careful implementation and interpretation of these reforms, so that sentences reflect the need to combat racism and discrimination in Bolivia, without unnecessarily limiting freedom of speech. Both the press and the state must be held accountable for influencing public opinion and working to combat racism and discrimination in Bolivian society.

Updates on this initiative and other conflicts will be in Part II of AIN’s analysis of the anti-racism and discrimination law.

[iii] Ibid. Examples include racist protests in Santa Cruz, the Pando Massacre, and the humiliation of Morales supports in Sucre, all occurring in 2008.

[iv] Ibid. This section relates the law to the Global Conference against Racism, Racial Discrimination, Xenophobia, and other forms of intolerance in Durban, South Africa in 2001. Accords from this conference include: a) racial discrimination etc. as a human rights issue; b) defines diversity as good for humanity; c) goal to increase political and social participation of all groups as better for society as a whole; and d) the recognition of links between poverty, social marginalization etc. and discrimination. In 2009 in the Geneva Follow-up Conference, participating states agreed to: 1) increase determination to work on these issues; 2) promote intercultural dialogue; and 3) implement legislation to achieve these goals.

“Article 23. The following resolutions will be incorporated in Title VII of the Second Book of the Penal Code, “Chapter 5,” entitled: “Crimes against Human Dignity,”:

“Article 281 bis. – (Racism)

I. A person who arbitrarily or illegally restricts, prevents, infringes upon, or impedes the exercise of individual or collective rights, motivated by race, national origin or ethnicity, color, ancestry, or for use of dress or language of, or for belonging to, nations or groups of indigenous, campesino, original or Afrobolivian peoples, will be sanctioned to a prison sentence between three and seven years.

II. The sanction will be at least one third and at most one half more severe when:

The act is committed by a public servant or authority.

The act is committed by an individual in the provision of public service.

The act was committed with violence.

Article 283 ter. – (Discrimination)

A person who arbitrarily or illegally obstructs, restricts, infringes upon, impedes or prevents the exercise of individual or collective rights, motivated by sex, age, gender, sexual orientation or gender identity, cultural identity, family affiliation, nationality, citizenship, language, religious creed, ideology, political opinion or philosophy, marital status, economic or social situation, illness, occupation, level of education, being differently abled or having a physical, intellectual or sensory disability, pregnancy, regional origin, physical appearance and dress, will be sanctioned to a prison sentence between one and five years.

I. The sanction will be at least one third and at most one half more severe when:

The act is committed by a public servant or authority.

The act is committed by an individual in the provision of public service.

The act was committed with violence.

Article 281 quater. (Diffusion and incitement of racism or discrimination)

A person who, by whatever means, disseminates ideas based on racial superiority or hate or that promote and/or justify racism or any form of discrimination as described in Articles 281 bis and 281 ter., or incites violence or persecution of individual or groups of people, motivated by racist or discriminatory reasons will be sanctioned with a prison sentence of between one and five years.

I. This sentence will be at least one third and at most one half more severe when the act is committed by a public servant or authority.

II. When the act is committed by a social communications worker or owner, he/she cannot claim immunity or any other exemption.

A person who participates in an organization or association which promotes and/or justifies racism or discrimination as described in Articles 281 bis and 281 ter or incites hate, violence, or persecution of individuals or groups based on racist or discriminatory motives, will be sanctioned with a prison sentence between one and four years.

The sentence will be at least one third and at most one half more severe when the act was committed by a public servant or authority.

Article 281 octies.- (Insults and other Verbal Aggressions Based on Racist or Discriminatory Motives)

Any person who, by whatever means, insults or verbally attacks, based on racist or discriminatory motives as described in Articles 281 bis and 281 ter, will be sentenced to community service lasting between forty days and eighteen months, in multiples of forty to one hundred days.

I. If the crime was committed via print, manuscript, or by any media communications, the penalty will be at least one third and at most one half more severe.

II. If the person accused of this crime retracts, before or by the time the charge is formalized, penal action will be terminated. He/she will not be allowed to make a second retraction for the same act.

The retraction must be made in the same way, in the same conditions and scope, as the insult or verbal aggression, taking on the costs that this retraction will occur. “

[xvi] An example is the case of Ezra Levant before the Alberta Human Rights Commission. In 2006, Levant republished Danish cartoons of the prophet Mohammed that were deemed offensive by Islamic groups. However, the case was overturned since the Commission decided that while the cartoons were “offensive,” Levant’s action did not “incite hate.” See Kurz, Marvin, “Human rights,” The Globe and Mail, 1 May 2006.